Unfair terms in bank loan agreements

Unfair terms in bank loan agreements – is there contractual balance?

Bank credit – a financial instrument widely utilized by the general public at a national level, which enables access to funds while imposing an obligation of repayment in the manner and amount mutually agreed upon under the Credit Agreement. However, does a genuine contractual balance exist between the borrower and the banking institution?

First and foremost, let us define the concept of contractual balance:

Contractual balance entails proportionality between the rights and obligations of the contracting parties (between yourself, as the borrower, and the banking institution), ensuring that neither party derives any unjustified advantage.

The parties are bound to act within the contractual relationship exclusively in good faith, without taking unfair advantage of the other party or being unduly favored in any way. (In essence, the scales must not tip in favor of either contracting party).

What are these unfair terms?

A clause may be deemed unfair if it has not been subject to individual negotiation between the parties, if it is contrary to the requirement of good faith, or if it creates a manifest imbalance between the rights and obligations of the contracting parties.

Common examples of unfair terms in bank loan agreements

For example, a contractual clause allowing the bank to unilaterally determine or adjust the interest rate which you are to repay following the drawdown of the credit, constitutes an unfair term, as it creates a significant imbalance in favor of the bank.

Moreover, another frequently encountered example within such agreements is represented bythe risk fees or administration fees.

The risk fee has historically been one of the primary grounds for declaring clauses unfair, as this amount was most often charged without corresponding to any actual service rendered by the bank.

Early repayment clauses under which the banking institution is permitted to declare the loan accelerated for any contractual non-compliance whatsoever. (In practice, even a single day's delay in payment could allow the bank to initiate foreclosure proceedings against you).

Another example is represented by the clauses concerning exorbitant default interest clauses (where there is a manifest disproportion between the amount due and the interest, the latter may be challenged before a court of law).

What legal recourse do you have when your credit agreement includes unfair contract terms?

The standard legal sanction for an unfair contract term is that it is deemed null and void. Effectively, provided it is feasible, the agreement shall remain binding upon the parties without the offending provision, as though it were non-existent.

În situația în care acea clauză prevedea obligația ta de a achita băncii diverse sume de bani (cu titlu de dobânzi, comisioane etc), banca va putea fi obligată să îți returneze acele sume încasate în mod necuvenit (plus dobânda legală, dacă se impune acest lucru).

How can support be provided in the event that you are faced with such unfair contract clauses?

Where you consider that your consent was impaired through the introduction of unlawfully introduced of such a clause, there are procedures that can be followed to achieve the contractual balance mentioned above. For instance, the bank can be formally notified in the hope of an amicable settlement of the dispute, or a legal action may be filed before the competent court of law for the purpose of declaring those respective clauses unfair.

For a thorough analysis of your agreement and to determine the best strategy for your specific situation please do not hesitate to contact me with confidence and let’s work together to restore contractual fairness and the integrity of your consent!